A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Monday, 27 May 2013

This afternoon I visited the exhibition of works by George Bellows at the Royal Academy of Art in London. An American artist during the first few decades of the twentieth century, Bellows is well-known for his paintings of boxing matches. Today I learned that he was an artist who was greatly concerned about a range of issues that fit squarely within the frame of human rights. Several of his works on human rights themes, including atrocity in wartime, capital punishment and lynching, are on display at the Royal Academy of Art.There is a series of large canvasses dealing with atrocities perpetrated during the invasion and occupation of Belgium by Germany during the First World War. One of them shows a young man having his hands chopped off.

There is a dramatic lithograph entitled 'electrocution'.

There are also two slightly different versions of a print showing the lynching of an African-American entitled 'The Law is Too Slow'.

Monday, 20 May 2013

For a fabulous, original approach to international justice,
have a look at the recent report prepared by Daniel McLaughlin for the Leitner
Center for International Law and Justice at Fordham Law School. Using very
sophisticated graphics, this publication aims to engage a wider audience with
issues of international justice by presenting well-researched information about
the tribunals and their underlying conflicts through a novel partnership with
graphic and information designers. Below
is an example that presents the costs of the tribunals.

Wednesday, 15 May 2013

Like a shot
out of the dark, Israel has been taken to the International Criminal Court by
Comoros. Yesterday, Comoros submitted a referral in accordance with article 14
of the Rome Statute concerning the Israeli attack on the so-called Gaza Freedom
Flotilla in May 2010. The referral letter is available on the Court's website.

In the days
and weeks to come, there will be much chattering on the blogs and in law
journals about the legal details. Is the referral admissible? Does it meet the
gravity threshold? What about complementarity? Should the Prosecutor invoke the
‘interests of justice’ and decline to proceed?

But
ultimately, like all of the other decisions to proceed or not to proceed with
an investigation, politics will determine the outcome. Judging by the history
of the Office of the Prosecutor, any contrived technical argument will suffice
in order to avoid the Court addressing the situation in Palestine. Because
everybody knows that the Prosecutor is terrified to deal with the situation in
Palestine. It risks upsetting the increasingly cordial relationship between the
Court and the United States.

The Comoros
referral has some intriguing and unique legal features. Like previous
applications of article 14, it is a ‘self-referral’. Comoros is referring a
situation that took place on its own territory. The MV Mavi Marmara, where the
main attack took place, is a Comoros vessel. In accordance with article 12 of
the Rome Statute a ship flagged in Comoros is deemed to be part of its
territory.

But as the
referral makes clear, Comoros is referring the situation on its own territory
because of the acts of another State. In that sense, it is really the first
referral directed by one State against another. And it is also of interest
because although Comoros is not and cannot charge Israel with the crime of
aggression, the referral is entirely related to an aggressive act by one State
against another (and in which the alleged aggressor will, of course, claim to have
been acting in self defence).

In her
statement yesterday acknowledging the referral, the Prosecutor indicated that
she will now consider whether or not to initiate an investigation. There is no
obligation on the Prosecutor to proceed. No referral, whether it is by a State
party or by the Security Council, compels the Prosecutor to proceed. In practice,
the Prosecutor has accepted every referral to date. This is likely to be the
first referral that the Prosecutor refuses.

Should she
decide not to investigate, article 53 becomes operational. It entitles Comoros
to seek revision of the Prosecutor’s decision by a Pre-Trial Chamber. That too
would be a first for the Court, because there has never before been such a
proceeding. We do not know how the judges will interpret article 53. But we
have some hints, because the nature of the revision is quite similar to what is
contemplated by article 15, when the Prosecutor seeks authorisation to
investigate a situation. Decisions by the Pre-Trial Chambers pursuant to
article 15 indicate a very deferential and permissive attitude. Judges have
been very reluctant to attempt to second-guess discretionary decisions by the
Prosecutor with respect to priorities of prosecution. We can expect something
similar if this case ever gets to the article 53 stage.

The
Prosecutor does not need the referral in order to address the situation in
Palestine. The Prosecutor can exercise jurisdiction over the territory of
Palestine since 1 July 2002 as a result of Palestine’s declaration of January
2009.

Although no
official statement has been issued, it seems that the Prosecutor does not
consider the January 2009 declaration to be effective. Readers will recall that
after studying the Palestinian declaration for more than three years, the
former Prosecutor issued a statement saying that the issue of whether or not
Palestine was a State was to be determined by the General Assembly and not the
Prosecutor. The General Assembly recognized Palestine as a full observer State
in November 2012. The Prosecutor does not seem to dispute the fact that
recognition by the General Assembly resolves the issue of Palestinian statehood
for the purposes of article 12.

But the
position she is taking by which a new declaration is required is based on the
erroneous proposition that Palestine became
a State when the General Assembly admitted it in November 2012. The General
Assembly resolution provides confirmation that Palestine was a State. Under
general principles of law, statehood is determined according to several
criteria, but membership, whether as a full member or observer, in the General
Assembly is not one of them. Taking the position that Palestine must issue a
new statement is just one further example of the Prosecutor’s desire to avoid
having to deal with the substance of the situation, something driven by the
political perspective mentioned above.

The most
famous and important of the observer states is Switzerland. It was admitted by
the General Assembly in 1948 and remained in that status until becoming a
Member State in 2002. Would the Prosecutor consider that Switzerland was not a
State prior to 1948?

The General
Assembly admission of an observer state is simply a fact to be weighed when
assessing if an entity really is a State in accordance with article 12.
Switzerland didn’t need observer status in the General Assembly in order to
become a State. And perhaps one of the other observer states, the Holy See, isn’t
really a state at all, despite recognition by the General Assembly.

Even if
Palestine were to submit a new declaration, the Prosecutor might very well deny
it any retroactive effect. She has not yet taken a position on this. But given
her anathema to things relating to Palestine, I would expect her to claim that
Palestine can only give jurisdiction to the Court from November 2012, when it
‘became’ a State according to the reasoning her Office appears to have adopted.

This would
be a very perverse position. Because if Palestine cannot give jurisdiction over
its territory back to 1 July 2002, then who can? Surely not Israel, because we
are talking about occupied territory. Is it really thinkable that the
Prosecutor would recognize what would be, in effect, a black hole that is
immune to the jurisdiction of the Court? This cannot be consistent with the
object and purpose of the Rome Statute.

The
flotilla events are probably the weakest basis for Palestine-related
prosecutions at the International Criminal Court. The best focus for the
Prosecutor – and something she can do on her own, without any referral, and by
acknowledging the validity of the January 2009 declaration – is an
investigation into the ongoing settlement policy of Israel. It is unlawful in
international law and a crime under the Rome Statute. A decision by the
Prosecutor to investigate the situation of the settlements might help the world
to address a situation of festering and intolerable illegality. And while it
might anger a few powerful states, it would do wonders for the Court’s
reputation in Africa and elsewhere in the Global South.

Sunday, 12 May 2013

Here's an interesting short film clip with a brief interview of Raphael Lemkin, the man who devised the word genocide. The conclusion shows Herbert Evatt, who was president of the General Assembly in 1948, announcing the adoption of the Genocide Convention.Thanks to Diane Amann.

Friday, 3 May 2013

Please go to https://moocfellowship.org/submissions?discipline=2&language=en and cast your vote in support of the on line course I am proposing on human rights. There is a development fellowship available, offered by iversity and Stifterverband für die Deutsche Wissenschaf, but there are many contenders and it seems that the number of votes cast and Facebook 'likes' is important. Please urge your friends to vote as well. I thank you in advance for your support.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.